WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Hayat Kimya Sanayi Anonim Şirketi v. molped.com
Case No. D2014-0407
1. The Parties
The Complainant is Hayat Kimya Sanayi Anonim Şirketi of Istanbul, Turkey, represented by Dericioğlu & Yaşar Law Office, Turkey.
The Respondent is molped.com of Istanbul, Turkey.
2. The Domain Name and Registrar
The disputed domain name <molped.com> is registered with OnlineNic, Inc. d/b/a China-Channel.com (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 14, 2014. On March 14, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 17, 2014, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on March 24, 2014.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 25, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was April 14, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 15, 2014.
The Center appointed Kaya Köklü as the sole panelist in this matter on April 24, 2014. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
In accordance with the Rules, paragraph 11(a), and since the parties have not agreed otherwise, the Panel finds that the language of the administrative proceedings is the language of the Registration Agreement, i.e., English.
4. Factual Background
The Complainant is a large and renowned Turkish company mainly active in the field of manufacturing hygienic pads and tissues. It belongs to a large group of companies, whose origin dates back to the late 1930's. The Complainant has around 5,200 employees and is marketing its products in more than 100 countries worldwide.
The Complainant is the owner of the trademark MOLPED, which has been registered in many jurisdictions for various products and services. The first trademark registration in Turkey dates back to the year 1996. In 2002, the Turkish Patent Institute, the competent authority for trademark registrations in Turkey, acknowledged the MOLPED trademark as a well-known trademark in Turkey.
The Complainant has owned and operated the domain name <molped.com.tr> since the year 2000.
The disputed domain name <molped.com> was created on February 17, 2005.
The identity of the Respondent is unclear as the true name and contact details are unknown.
5. Parties' Contentions
The Complainant requests the transfer of the disputed domain name.
The Complainant is of the opinion that the disputed domain name is identical to the Complainant's trademark MOLPED.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in the disputed domain name and must have registered and used the disputed domain name in bad faith.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
According to paragraph 14(a) and 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable and on the basis of the Complaint where no Response has been submitted.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:
(i) the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complaint. Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228.
However, concerning the uncontested information provided by the Complainant, the Panel may, where relevant, accept the provided reasonable factual allegations in the Complaint as true. Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.
It is further noted that the Panel has taken note of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0") and, where appropriate, will decide consistent with the WIPO Overview 2.0.
A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is identical to the MOLPED trademark of the Complainant.
First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights. As evidenced in the Complaint, the Complainant has been the owner of various MOLPED trademarks since 1996.
The disputed domain name is identical to the Complainant's MOLPED trademark as it incorporates the Complainant's trademark in its entirety without any additions or amendments.
In the Panel's view, the mere addition of the generic Top-Level Domain ("gTLD") ".com" has no distinguishing effect and is generally not to be considered when assessing identity or confusing similarity between a domain name and a trademark (in line with prior UDRP panels concerning the use of a gTLD within a disputed domain name, cf. V&S Vin & Sprit AB v. Ooar Supplies, WIPO Case No. D2004-0962; Google Inc. v. Nijat Hassanov, WIPO Case No. D2011-1054).
In view of the above, the Panel is satisfied that the Complainant has met the requirements under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Panel further finds that in the absence of a Response, the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name.
While the burden of proof remains with the Complainant, the Panel recognizes that this would often result in the impossible task of proving a negative, in particular as the evidence needed to show the Respondent's lack of rights or legitimate interests is primarily within the knowledge of the Respondent. Therefore, the Panel agrees with prior UDRP panels that the Complainant is required to make out a prima facie case before the burden of production of evidence shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name in order to meet the requirements of paragraph 4(a)(ii) of the Policy. Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.
The Panel finds that the Complainant has satisfied this requirement, while the Respondent has failed to file any evidence or convincing argument to demonstrate a right or legitimate interest in the disputed domain name according to the Policy, paragraph 4(a)(ii) and 4(c).
With its Complaint, the Complainant has provided uncontested prima facie evidence that the Respondent has no rights or legitimate interests to use the Complainant's trademark MOLPED in the disputed domain name.
In the absence of a Response by the Respondent, there is no indication in the current record that the Respondent is commonly known by the disputed domain name. Furthermore, the Respondent has failed to demonstrate any of the other nonexclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or any other evidence of a right or legitimate interest in the disputed domain name. In particular, the Respondent has failed to show that the disputed domain name has been or is intended to be used in connection with a bona fide offering of goods or services.
In fact, the Panel cannot conceive of any use of this trademark by the Respondent, which would qualify as a legitimate use.
Consequently, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Panel is further convinced that the Respondent has registered and is using the disputed domain name in bad faith.
The Panel is of the opinion that the Respondent intentionally attempted to create a likelihood of confusion among customers and/or to otherwise take advantage of the Complainant's trademark, probably for commercial gain or some other illegitimate benefit.
The Panel is convinced that the Respondent must have been well-aware of the Complainant's trademark when it registered the disputed domain name in February 2005. At the date of registration of the disputed domain name, the Complainant's trademark was already registered for nearly 10 years and acknowledged by the Turkish Patent Institute as a well-known trademark since 3 years.
Bad faith registration and use is further indicated by the fact that the Respondent did not even bother to include any amendments or additions to the disputed domain name in order to prevent confusion among Internet users.
The fact that the disputed domain name is currently parked only does not change the Panel's findings in this respect.
All in all, the Panel cannot conceive of any good faith use of the disputed domain name which is not related to the trademark owned by the Complainant.
The Panel therefore concludes that the disputed domain name was registered and is being used in bad faith and that the Complainant consequently has satisfied the third element of the Policy, namely, paragraph 4(a)(iii) of the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <molped.com> be transferred to the Complainant.
Date: May 6, 2014